[House Hearing, 117 Congress]
[From the U.S. Government Publishing Office]
OVERSIGHT HEARING ON CLEMENCY AND
THE OFFICE OF THE PARDON ATTORNEY
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HEARING
BEFORE THE
SUBCOMMITTEE ON CRIME, TERRORISM,
AND HOMELAND SECURITY
OF THE
COMMITTEE ON THE JUDICIARY
U.S. HOUSE OF REPRESENTATIVES
ONE HUNDRED SEVENTEETH CONGRESS
SECOND SESSION
__________
THURSDAY, MAY 19, 2022
__________
Serial No. 117-69
__________
Printed for the use of the Committee on the Judiciary
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Available via: http://judiciary.house.gov
______
U.S. GOVERNMENT PUBLISHING OFFICE
48-949 WASHINGTON : 2022
COMMITTEE ON THE JUDICIARY
JERROLD NADLER, New York, Chair
MADELEINE DEAN, Pennsylvania, Vice-Chair
ZOE LOFGREN, California JIM JORDAN, Ohio, Ranking Member
SHEILA JACKSON LEE, Texas STEVE CHABOT, Ohio
STEVE COHEN, Tennessee LOUIE GOHMERT, Texas
HENRY C. ``HANK'' JOHNSON, Jr., DARRELL ISSA, California
Georgia KEN BUCK, Colorado
THEODORE E. DEUTCH, Florida MATT GAETZ, Florida
KAREN BASS, California MIKE JOHNSON, Louisiana
HAKEEM S. JEFFRIES, New York ANDY BIGGS, Arizona
DAVID N. CICILLINE, Rhode Island TOM McCLINTOCK, California
ERIC SWALWELL, California W. GREG STEUBE, Florida
TED LIEU, California TOM TIFFANY, Wisconsin
JAMIE RASKIN, Maryland THOMAS MASSIE, Kentucky
PRAMILA JAYAPAL, Washington CHIP ROY, Texas
VAL BUTLER DEMINGS, Florida DAN BISHOP, North Carolina
J. LUIS CORREA, California MICHELLE FISCHBACH, Minnesota
MARY GAY SCANLON, Pennsylvania VICTORIA SPARTZ, Indiana
SYLVIA R. GARCIA, Texas SCOTT FITZGERALD, Wisconsin
JOE NEGUSE, Colorado CLIFF BENTZ, Oregon
LUCY McBATH, Georgia BURGESS OWENS, Utah
GREG STANTON, Arizona
VERONICA ESCOBAR, Texas
MONDAIRE JONES, New York
DEBORAH ROSS, North Carolina
CORI BUSH, Missouri
AMY RUTKIN, Majority Staff Director and Chief of Staff
CHRISTOPHER HIXON, Minority Staff Director
------
SUBCOMMITTEE ON CRIME, TERRORISM, AND HOMELAND SECURITY
SHEILA JACKSON LEE, Texas, Chair
CORI BUSH, Missouri, Vice-Chair
KAREN BASS, California ANDY BIGGS, Arizona, Ranking
VAL DEMINGS, Florida Member
LUCY McBATH, Georgia STEVE CHABOT, Ohio
MADELEINE DEAN, Pennsylvania LOUIE GOHMERT, Texas
MARY GAY SCANLON, Pennsylvania W. GREGORY STEUBE, Florida
DAVID CICILLINE, Rhode Island TOM TIFFANY, Wisconsin
TED LIEU, California THOMAS MASSIE, Kentucky
J. LUIS CORREA, California VICTORIA SPARTZ, Indiana
VERONICA ESCOBAR, Texas SCOTT FITZGERALD, Wisconsin
STEVE COHEN, Tennessee BURGESS OWENS, Utah
KEENAN KELLER, Chief Counsel
JASON CERVENAK, Minority Counsel
C O N T E N T S
----------
Thursday, May 19, 2022
Page
OPENING STATEMENTS
The Honorable Sheila Jackson Lee, Chair of the Subcommittee on
Crime, Terrorism, and Homeland Security from the State of Texas 2
The Honorable Andy Biggs, Ranking Member of the Subcommittee
Crime, Terrorism, and Homeland Security from the State of
Arizona........................................................ 13
The Honorable Jerrold Nadler, Chair of the Committee on the
Judiciary from the State of New York........................... 14
WITNESSES
Panel I
The Honorable Ayanna Pressley, Member of Congress from the State
of Massachusetts
Oral Testimony................................................. 15
Prepared Statement............................................. 18
Panel II
Mark Osler, Robert and Marion Short Distinguished Professor of
Law, University of Saint Thomas School of Law
Oral Testimony................................................. 22
Prepared Statement............................................. 25
D. Michael Hurst, Jr., Partner, Phelps Dunbar LLP
Oral Testimony................................................. 32
Prepared Statement............................................. 34
Rachel E. Barkow, Vice Dean and Charles Seligson Professor of
Law; Faculty Director, Center on the Administration of Criminal
Law; NYU School of Law
Oral Testimony................................................. 43
Prepared Statement............................................. 45
The Honorable Morris Murray, Prosecuting Attorney, Defiance
County, Ohio
Oral Testimony................................................. 57
Prepared Statement............................................. 59
Nkechi Taifa, Founder, Principal and CEO, The Taifa Group LLC
Oral Testimony................................................. 61
Prepared Statement............................................. 63
Andrea C. James, Founder and Executive Director, The National
Council for Incarcerated and Formerly Incarcerated Women and
Girls
Oral Testimony................................................. 76
Prepared Statement............................................. 78
Jason Hernandez, McKinney, Texas
Oral Testimony................................................. 90
Prepared Statement............................................. 92
William ``Bill'' Underwood, Senior Fellow, The Sentencing Project
Oral Testimony................................................. 97
Prepared Statement............................................. 99
LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING
Materials submitted by the Honorable Sheila Jackson Lee, Chair of
the Subcommittee on Crime, Terrorism, and Homeland Security
from the State of Texas, for the record
An article entitled, ``We Know How to Fix the Clemency Process.
So Why Don't We?'' New York Times............................ 6
A report entitled, ``The Role of Clemency in Criminal Justice
Reform, 2022,'' Federal Sentencing Reporter.................. 9
An article entitled, ``Michelle Miles,'' Nation of Second
Chances, submitted by the Honorable Mary Gay Scanlon, a Member
of the Subcommittee on Crime, Terrorism, and Homeland Security
from the State of Pennsylvania, for the record................. 160
An article entitled, ``Ross Ulbricht Case Overview,''
freeross.org, submitted by the Honorable Thomas Massie, a
Member of the Subcommittee on Crime, Terrorism, and Homeland
Security from the State of Kentucky, for the record............ 172
Materials submitted by the Honorable Sheila Jackson Lee, Chair of
the Subcommittee on Crime, Terrorism, and Homeland Security
from the State of Texas, for the record
An article entitled, ``Anthony Robinson,'' The National
Registry of Exonerations..................................... 176
An article entitled, ``Michelle Miles,'' Nation of Second
Chances...................................................... 178
An article entitled, ``Pedro Torres,'' The National Registry of
Exonerations................................................. 184
An article entitled, ``Waylon Wilson,'' Nation of Second
Chances...................................................... 185
QUESTIONS AND RESPONSES FOR THE RECORD
Response to questions from Nkechi Taifa, Founder, Principal and
CEO, The Taifa Group LLC, submitted by the Honorable J. Luis
Correa, a Member of the Subcommittee on Crime, Terrorism, and
Homeland Security from the State of California, for the record. 202
Response to questions from Rachel E. Barkow, Vice Dean and
Charles Seligson Professor of Law; Faculty Director, Center on
the Administration of Criminal Law; NYU School of Law,
submitted by the Honorable J. Luis Correa, a Member of the
Subcommittee on Crime, Terrorism, and Homeland Security from
the State of California, for the record........................ 203
Response to questions from William ``Bill'' Underwood, Senior
Fellow, The Sentencing Project, submitted by the Honorable J.
Luis Correa, a Member of the Subcommittee on Crime, Terrorism,
and Homeland Security from the State of California, for the
record......................................................... 204
OVERSIGHT HEARING ON CLEMENCY AND
THE OFFICE OF THE PARDON ATTORNEY
----------
Thursday, May 19, 2022
House of Representatives
Subcommittee on Crime, Terrorism, and Homeland Security
Committee on the Judiciary
Washington, DC
The Subcommittee met, pursuant to call, at 9:06 a.m., in
Room 2141, Rayburn House Office Building, Hon. Sheila Jackson
Lee [Chair of the Subcommittee] presiding.
Members present: Representatives Nadler, Jackson Lee,
Scanlon, Bush, Cicilline, Lieu, Correa, Biggs, Gohmert,
Tiffany, Massie, and Owens.
Staff present: Aaron Hiller, Chief Counsel and Deputy Staff
Director; John Doty, Senior Advisor and Deputy Staff Director;
David Greengrass, Senior Counsel; Moh Sharma, Director of
Member Services and Outreach & Policy Advisor; Brady Young,
Parliamentarian; Cierra Fontenot, Chief Clerk; Merrick Nelson,
Digital Director; Mauri Gray, Deputy Chief Counsel for Crime;
Nicole Banister, Counsel for Crime; Veronica Eligan,
Professional Staff Member/Legislative Aide for Crime; Jason
Cervenak, Minority Chief Counsel for Crime; Michael Koren,
Minority Professional Staff Member; Andrea Woodard, Minority
Professional Staff Member; and Kiley Bidelman, Minority Clerk.
Ms. Jackson Lee. [Presiding.] The Subcommittee will come to
order.
Without objection, the Chair is authorized to declare
recesses of the Committee at any time.
Good morning and welcome to today's oversight hearing on
``Clemency and the Office of the Pardon Attorney.''
I would like to remind Members that we have established an
email address and distribution list to circulate exhibits,
motions, or other written materials that Members might want to
offer as part of our hearing today. If you would like to submit
materials, please send them to the email address that has
previously been distributed to your offices, and we will
circulate the materials to Members and staff as quickly as we
can.
I would also ask for all Members, both those in person and
those attending remotely, to please mute your microphones when
you are not speaking. This will help prevent feedback and other
technical issues. You may unmute yourself anytime if you seek
recognition.
Due to the size of our panels today, I will strictly
enforce the five-minute rule.
I now recognize myself for an opening statement.
During today's hearing, the Subcommittee will examine
Executive Clemency and explore solutions to improve the process
of evaluating clemency petitions and making recommendations to
the President.
Although the authority to grant clemency vests solely with
the President, the Office of the Pardon Attorney, a unit within
the Department of Justice that is congressionally created and
funded, aids the President in the exercise of the clemency
power through an administrative process established by
regulations that developed somewhat haphazardly.
The rules, which were first promulgated by President
McKinley in 1898, provide that clemency petitions are to be
directed to DOJ and require the Attorney General to make a
recommendation to the President on the merits of those
requests.
The relatively simple process for evaluating petitions and
making recommendations evolved during the 1970s and 1980s, and
now, include seven levels of review, the first four of which
reside within the DOJ. The Office of the Pardon Attorney, under
the direction of the Deputy Attorney General, is responsible
for processing petitions for Executive Clemency, reviewing case
materials, vetting petitioners, and providing recommendations
to the President. It is where the clemency process begins and
ends for some petitions.
Understanding the central importance of the Office of
Pardon Attorney to a discussion about clemency and our
Committee's oversight over both the Department of Justice and
the Office of the Pardon Attorney, I thought it best to have
the Pardon Attorney participate in our conversation today. It
is unfortunate that we were unable to reach an agreement with
the Department of Justice to have the Pardon Attorney here to
discuss how we can efficiency and account for and reduce bias
in the clemency process because, as the Supreme Court has
noted, Executive Clemency serves a vital role in the criminal
justice system.
We know so many families that are struggling with loved
ones who deserve to have that consideration. So, I expect to
have the Pardon Attorney here in the very near future, singly
in a hearing or at a briefing before this Committee. It is
imperative that all elements of this process come before this
Committee for our appropriate oversight.
The Framers of the Constitution understood that the
criminal justice system needed a check that would guard against
unjust or excessive punishments. Clemency can be a useful tool
to right the wrongs of the failed war on many aspects of the
criminal justice system and overcome misguided policies that
led to mass incarceration by unburdening those who languish in
prison or who suffer from the collateral consequences of their
convictions. Certainly, some of those were in the times of the
excessive penalties for those who had basic possession in terms
of drug cases, minimal drug cases with decades of sentencing
and incarceration.
If that is to be the case, Congress should encourage the
President to use Executive Clemency and power routinely by
fixing an apparently broken system and providing the President
with the support he needs. That was done just a few weeks ago
by President Biden.
Clemency decisions should be made objectively,
systematically, and with transparency. Yet, we know that the
modern clemency process cycles between periods of inaction and
controversy, but there have been a few instances in the
exercise of Executive Clemency that varied from what we have
become accustomed and from what we must learn.
In 1974, President Ford establishes a temporary
Presidential Clemency Board and identified more than 13,000
clemency recipients following the Vietnam War. Presidents Ford
and Carter granted clemency to hundreds of thousands of men who
evaded the draft.
Then, in 2014, DOJ, at the behest of former President
Barack Obama, announced the Clemency Initiative which focused
on nonviolent drug offenders, so many that were incarcerated
for decades. Despite initial problems in planning,
implementation, and management, through the initiative, DOJ
substantially increased the number of recommendations to the
White House, resulting in 1,696 individuals receiving clemency,
appropriately so.
Significant changes, which we would make note of, were made
in the final year of the initiative that enabled DOJ to meet
its goal of making recommendations to the White House on over
13,000 petitions. For example, DOJ temporarily increased
staffing at the Office of the Pardon Attorney to meet the
demands of the initiative. The Office of the Pardon Attorney
prioritized the review of petitions from individuals who were
strong candidates for clemency, and DOJ streamlined the review
process.
Taking lessons from Obama's Clemency Initiative, we should
consider whether there are incentives or measures Congress can
implement to permanently streamline and shorten the timing of
the review process to avoid the dilemma President Biden
currently faces. I would have liked to ask the Pardon Attorney
how she plans to tackle the backlog of 15,000 clemency
petitions President Biden inherited upon taking office in an
efficient and just manner or how Congress can help.
We must also consider the longstanding criticism that there
is a merit conflict in the review process when it begins with
DOJ if the President is to make better use of the clemency
power.
Since the Pardon Attorney is not here, I hope our Witnesses
can offer sensible solutions and proposals for reform of the
clemency process, as well as ways in which clemency can be used
as the Framers of the Constitution expected.
I thank each of our Witnesses for their participation. I
look forward to a robust discussion.
Without objection, I will submit into the record the
following documents:
A New York Times guest essay written by Rachel E. Barkow
and Mark Osler entitled, ``We Know How to Fix the Clemency
Process. So Why Don't We?'' dated July 13, 2021.
An entry from the Federal Sentencing Reporter, Volume 32,
by Mark Osler entitled, ``The Role of the Clemency in Criminal
Justice Reform.''
[The information follows:]
MS. JACKSON LEE FOR THE RECORD
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Ms. Jackson Lee. Let me also thank my colleague and Vice
Chair, Congresswoman Cori Bush, for her interest in this
hearing and her invaluable help as we proceeded to have this
hearing, and as we proceed further to secure the Pardon
Attorney.
Might I also mention with deepest sympathy to the families
of those lost in Buffalo, New York, and those lost to guns and
hatred.
As we proceed in this hearing, I hope that we will find as
many facts as necessary to improve this process and to improve
the criminal justice system.
I now recognize the gentleman from Arizona, Mr. Biggs, for
his opening statement.
Mr. Biggs, you are recognized.
Mr. Biggs. Thank you, Madam Chair, and I appreciate you
holding this hearing today.
Today's hearing is entitled, ``Oversight Hearing on
Clemency and the Office of the Pardon Attorney.'' It is
interesting and I appreciate you reporting that you attempted
to bring the new Pardon Attorney to our hearing today. The new
Pardon Attorney is Elizabeth G. Oyer. She served 10 years as a
Federal public defender, and I look forward to hearing her in
the future about the Pardon Attorney's position and her
thoughts on the proposals that we are going to hear today.
This hearing is actually just another in a series of
hearings that furthers the agenda of my friends on the other
side of the aisle with their intention of totally reforming the
justice system, and with some of their initiatives actually
putting the public safety at risk.
The first in this series was a hearing on ``Controlled
Substances, Federal Policies, and Enforcement.'' In that
hearing, while arguing for drastic reform of our drug laws, one
of the majority's Witnesses likened our nation's drug laws to
Jim Crow laws.
When the Subcommittee held a hearing entitled, ``From
Miranda to Gideon,'' they called for pretrial reform. My
colleagues on this Subcommittee have some interesting--actually
dangerous--ideas about pretrial criminal justice reform. One of
them introduced the No Money Bail Act of 2021. This bill would
eliminate bail in the Federal system and withhold Federal grant
money from States that don't eliminate their bail.
We have seen time and time again all over this country the
disastrous and deadly consequences of eliminating bail. At that
hearing, we heard from a grieving mother who lost her son
because the State of New Jersey implemented bail reform that
allowed a convicted felon back out onto the street.
Next, we had another hearing on ``Undoing the Damage of the
War on Drugs: A Renewed Call for Sentencing Reform.'' This was
another hearing where the majority's Witnesses called for
decriminalizing drug possession for all drugs, and no matter
how much drugs that they had in their possession.
That brings us to today's hearing on clemency. My reading
of article II, section 2, is that the President has broad,
broad authority to grant reprieves and pardons for offenses.
The President, ultimately, makes the decision on how to
reprieve or provide clemency, and thus, the President actually
has the opportunity--and, quite frankly, I think has the
obligation--to create the rubric for granting clemency and the
standards that the President is going to look at before
granting reprieves, pardons, commutations, or clemency.
So, with that in mind, I don't think anybody in the room
doubts the President has constitutional authority in this area,
nor do we think that the President's authority to commute
sentencing of drug offenders is outside of the scope of the
President's authority. So, because the Constitution seems to
vest that authority with the President, the rubric seems to
also lie with the President.
Just because the President may commute such sentences does
not necessarily mean that the President should take action at
all. While such commutations do not raise constitutional
concerns, they certainly can raise public safety concerns.
During the last two years, the United States has seen a
spike in violent crime. In 2020, the United States tallied more
than 20,000 murders, the highest total since 1995 and 4,000
more than in 2019. FBI data, preliminarily, for 2020 points to
a 25 percent surge in murders. This would be the largest single
year increase since the agency began publishing uniform data in
1960.
Last year, in America, there were more than 105,000 drug
overdoses. That follows a record in 2020 with more than 91,000
overdose deaths. Now, may not be the time, despite what the
Biden Administration and any of my colleagues believe, to
release drug traffickers and dealers back into our communities
and neighborhoods.
Just last month, the Biden Administration commuted the
sentences of 75 drug traffickers and dealers. President Obama,
similarly, commuted the sentence of 1,715 drug offenders, and
some of those granted clemency by President Obama went on to
reoffend not longer after they were released--many back to
selling and trafficking drugs.
At a time when overdose deaths and violent crimes is
surging, this Subcommittee should probably not look to ways to
let more drug dealers and traffickers out of prison early. More
importantly in some respects is the philosophy of this, and
that is that it is the President's prerogative--that means it
is the President who either designs, accepts the current
rubric, or implements a new rubric in determining early
releases, commutations, pardons, and reprieves.
We can comment on it, it is my position, but I don't think
we can legislatively, at least in a constitutional manner,
impose upon the President our will on how the President
determines to grant reprieves and pardons. That is plenary
power exclusively reserved to the President of the United
States.
Madam Chair, with that, I will yield back.
Ms. Jackson Lee. Thank you.
The Chair now recognizes the Chair of the Full Committee,
the gentleman from New York, Mr. Nadler, for his opening
statement.
Chair Nadler. Good morning.
Thank you. I thank Chair Jackson Lee for holding this
important oversight hearing on ``Executive Clemency and the
Office of the Pardon Attorney.''
I hope that today's discussion provides us with proposals
that will enable President Biden and his successors to apply
the power of Executive Clemency as the Framers intended--as a
tool necessary to the fair Administration of justice that
tempers justice with mercy.
Over the past several decades, Republicans and Democrats
have failed to employ this power, which rests solely in the
President, to help remedy injustice, as the Framers first
conceived. After decades of Draconian mandatory sentencing
policies, far too many nonviolent Federal offenders,
disproportionately, people of color, remain in prison serving
what we know now are unnecessarily harsh sentences. Some of
these prisoners are elderly and suffering from chronic
illnesses and have served their debt to society many times
over. Many others face hardships when seeking reentry into
their communities after completing their sentences because of
the collateral consequences of their convictions.
Clemency is the only remaining relief for many of these
people. Yet, thousands of clemency petitions are currently
pending due to the more than 15,000 petitions left by the
previous Administration for President Biden to consider.
The tremendous responsibility of reviewing these petitions
and making recommendations to the President has been
customarily delegated to the Office of the Pardon Attorney, an
agency within the Department of Justice.
This Subcommittee has both the authority and the obligation
to evaluate the efficacy of this office and to improve upon its
ability to support a vital authority of the Executive. I know
that many of our Witnesses today agree that the current
clemency process requires immediate reform. Some may even argue
that the process should be removed from the Department of
Justice altogether because of the inherent conflict of interest
posed by placing the authority to review petitions for clemency
within the same department that prosecuted each prisoner.
In recent years, much of this Committee's consideration of
clemency presented around abuse of the pardon power by
Presidents of both parties in individual cases. I appreciate
the opportunity today, instead, to focus on clear-minded
systemic reforms that will increase the rate and diversity of
clemency grants, paying special attention to the plight of
incarcerated women and minorities who have borne the brunt of
the so-called War on Drugs.
I commend President Biden for doing what many previous
Presidents have not; that is, issuing grants of clemency
earlier in his term and not just before his presidency ends.
Last month, he used criteria similar to those used by President
Obama to issue more than 1,700 grants of clemency, primarily to
nonviolent drug offenders who would have received a lower
sentence if they were charged with the same offense today.
Recalling our recent discussion surrounding the exercise of
compassionate release and the limitation of the First Step Act,
we know that there are thousands more remaining in prison who
are now released in home confinement with similar stories.
I hope that our Witnesses today will discuss how Congress
can help the Office of the Pardon Attorney and the President
reach more of these individuals and provide relief that will
allow them the ability to return to their communities and home
confinement without risking return to prison.
Although Congress has little authority over the President's
exercise of the clemency power, we can enact measures that will
pave the way for more clemency grants. We can also assist in
reforming the processes we do have control over to ensure that
petitions are treated fairly and timely, and as a routine
mechanism of the criminal justice system.
I would like to thank the Witnesses for appearing today. I
look forward to hearing their testimony, and I yield back the
balance of my time.
Ms. Jackson Lee. I thank the gentleman.
[Audio malfunction.]
Mr. Biggs. Madam Chair, you are frozen. We have got a
technical issue going on, Madam Chair.
Ms. Jackson Lee. Am I back?
Chair Nadler. Yes.
Ms. Jackson Lee. Am I back?
Chair Nadler. Yes, you are.
Ms. Jackson Lee. All right. Is Mr. Jordan present? Is Mr.
Jordan present?
Mr. Biggs. No, he is not present, Madam Chair.
Ms. Jackson Lee. Thank you.
When he comes, Ranking Member Jordan will be recognized--
[Audio malfunction.]
It is now my pleasure to introduce the Witnesses for the
first panel.
The Honorable Ayanna Pressley was elected to represent--can
you hear me?
Chair Nadler. Yes.
Ms. Jackson Lee. Can you hear me?
Chair Nadler. Yes.
Ms. Jackson Lee. The next Witness, the Honorable Ayanna
Pressley, was elected to represent Massachusetts' 7th
Congressional District in the House of Representatives on
November 6, 2018. She was also the first woman of color to
serve in the 100-year history of the Boston City Council. She
is an advocate and a fighter for informed and robust policies
and an advocate for positive change for the most vulnerable,
and an important legislator.
We are delighted to have her here, and we welcome you as
our distinguished Witness. Thank you for your participation.
Please summarize your testimony in five minutes. To help
you stay within the timeframe, there is a timing light on your
table and on your screen. When the light switches from green to
yellow, you have one minute to conclude your testimony. When
the light turns red, it signals that your five minutes has
expired.
STATEMENT OF HON. AYANNA PRESSLEY
Ms. Pressley. Should I go? All right.
Good morning.
Ms. Jackson Lee. Yes, yes.
Ms. Pressley. All right. Thank you.
Good morning, Chair Jackson Lee--
Ms. Jackson Lee. Good morning.
Ms. Pressley. --Ranking Member Biggs, and Chair Nadler, and
Members of the Subcommittee on Crime, Terrorism, and Homeland
Security. Thank you for the invitation to testify on my
legislation, the Fair and Independent Experts in Clemency Act,
also known as the FIX Clemency Act.
In the United States, there are approximately two million
people incarcerated in the criminal legal system and over
200,000 in Federal custody--disproportionately, Black, Latino,
indigenous, disabled, and LGBTQ+. Our nation has the highest
incarceration rate of any country in the world. This should
ring alarm bells for every lawmaker because it impacts mass
incarceration in each and every one of our districts, and it
should stoke the moral outrage of everyone who calls this
nation home, as this is a shameful legacy.
The people locked in cages throughout this nation are real
people. Their families and friends are serving their sentences
alongside them. I know this all too well, growing up with an
incarcerated parent. I can only imagine how different my own
childhood would have been if my father was able to get the
medical help and treatment he desperately needed and deserved.
Instead, his opioid addiction, which today would be treated as
a public health issue, was criminalized and his addiction
robbed me of his physical presence during my most formative
years.
Today, my father, Martin Terrell, like millions of Black
men and women, is a survivor of mass incarceration. He has
obtained multiple degrees, gone on to be a college professor
and published author. Nonetheless, my having been robbed of his
presence during my formative years, it has been an ongoing
healing process for myself and our family.
My story is hardly an anomaly. Across the country, more
than five million children have experienced the incarceration
of a parent. As policymakers, we must reject this unjust status
quo and disrupt the cycle and legacy in this country of
treating trauma with more trauma. We need to end the crisis of
mass incarceration and fixing our clemency process is a central
part of the solution.
That is why I am proud to have introduced The FIX Clemency
Act with two distinguished Members of the Judiciary Committee,
Representatives Cori Bush and Hakeem Jeffries. My legislation
would transform how clemency works by replacing the redundant
and biased Department of Justice process with a new and
independent U.S. Clemency Board. The Board would be composed of
experts in fields like behavioral health and rehabilitation,
appointed by the President. There would also be a seat at the
table for a person who was formerly incarcerated because I
believe the people closest to the pain should be the closest to
the power driving and informing the policymaking.
Currently, applications for clemency are under the full
control of staff in the Department of Justice and must undergo
repeated scrutiny with duplicative layers of bureaucratic
review. Experts have warned that this structure creates a
prosecutorial bias against each applicant, and at any point in
this process one lone staffer can unilaterally prevent an
application from moving forward.
The FIX Clemency Act makes clear that prosecutors and
people who run prisons should not have outsized influence when
it comes to evaluating clemency applicants. With my bill, the
newly created Board would be transparent and independent. All
recommendations by the Board would be transmitted directly to
the President and included in an annual report to Congress.
With more than 17,000 clemency applications pending for
years before the DOJ, we must pass the FIX Clemency Act. That
is over 17,000 people, and their lives hang in the balance.
I am proud that my bill was drafted in close partnership
with lawyers, constitutional scholars, advocates from across
the political spectrum, and those who understand clemency best,
people who were formerly incarcerated, people like Danielle
Metz, who is a recipient of clemency herself.
She was punished with three consecutive life sentences and
an additional 20 years in Federal prison for nonviolent drug
offenses. Danielle Metz served more than two decades in prison
away from family and her children before her sentence was
finally commuted. I am grateful for her partnership in this
legislation.
Congress has the power to legislate a just and equitable
clemency process by passing my legislation to create an
independent Board.
I applaud President Biden for granting 78 commutations and
pardons last month. It establishes a historic precedent and
will help set the individuals, their families, and communities
on a pathway to healing. We must continue this historic
momentum.
To truly confront the backlog of over 17,000 applications
and prevent it from ever occurring again, there must be
structural change. More than 150 years ago, Congress created
the current clemency process. Now, it is time for Congress to
fix it.
Thank you.
[The statement of Ms. Pressley follows:]
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Ms. Jackson Lee. Let me thank you for very insightful
testimony. We were very pleased to have you before our
Committee and very pleased that you accepted. So, thank you
very much.
At this time, we will move to the second panel.
This concludes the first panel of today's hearing. I would
like to thank Representative Pressley for participating in this
hearing.
We will now take a short recess to set up our second panel
of Witnesses. We will recess for five minutes.
[Recess.]
Ms. Jackson Lee. The Subcommittee will reconvene to hear
the testimony of our second panel. I will now introduce our
second panel of Witnesses.
Professor Mark Osler is a Robert and Marion Short Professor
of Law at the University of St. Thomas School of Law. He is a
former Federal prosecutor and author whose writings on
clemency, sentencing, and narcotics policy have appeared in The
New York Times, The Washington Post, The Atlantic, and many law
journals, including at Harvard, Stanford, the University of
Chicago, and Georgetown. Professor Osler is a graduate of the
College of William and Mary and Yale Law School.
Mr. D. Michael Hurst, Jr., is a partner with Phelps Dunbar
LLP. He was a U.S. Attorney for the Southern District of
Mississippi from 2017-2021, and previously served as
Legislative Director and Counsel to Congressman Chip Pickering
and as counsel for the Constitution Subcommittee of the House
Judiciary Committee. That was Congressman Chip Pickering. He
graduated from Millsaps College and the George Washington
University Law School.
Professor Rachel Barkow is Vice Dean and Charles Seligson
Professor of Law at NYU School of Law. She serves as a faculty
director of the Zimroth Center on the Administration of
Criminal Law at NYU. From 2013-2019, she served as a member of
the United States Sentencing Commission. Professor Barkow
graduated from Northwestern University and Harvard Law School.
She served as a law clerk to Judge Laurence H. Silberman on the
D.C. Circuit and Justice Antonin Scalia on the U.S. Supreme
Court.
The Honorable Morris Murray has been the prosecuting
attorney for Defiance County, Ohio, since his election in 2009.
He also serves as legal counsel for the Board of County
Commissioners, County Officials, and several other public
boards and agencies. Attorney Murray is a graduate of the
University of Dayton and the University of Dayton School of
Law.
Nkechi Taifa is President and CEO of The Taifa Group LLC;
founder and convener of the Justice Roundtable and serves as
senior fellow for the Columbia University Center for Justice.
She served as advocacy director for criminal justice at the
Open Society Foundation. She has also served as legislative and
policy counsel for the ACLU, the Women's Legal Defense Fund;
Director of Howard University's School of Law's Equal Justice
Program, and staff attorney for the National Prison Project.
She graduated from Howard University and George Washington
University Law School.
Ms. Andrea James is the founder and Executive Director of
the National Council for Incarcerated and Formerly Incarcerated
Women and Girls and the founder of Families for Justice as
Healing. She is a former criminal defense attorney, formerly
incarcerated woman, and author. Ms. James is a 2015 Soros
Justice Fellow and a recipient of the 2016 Robert F. Kennedy
Human Rights Award.
Mr. Jason Hernandez was granted clemency by President
Barack Obama on December 19, 2013. Upon his release, he earned
his high school diploma and founded several nonprofit
organizations, including at Last, which empowers Latino
students to become leaders in their schools and communities and
helps them pursue careers where Latinos are underrepresented.
Mr. Hernandez received fellowships from the Open Society
Foundation, Open Philanthropy, and the Latino Justice, and
serves as a consultant to the ACLU's Redemption Campaign,
Embracing Clemency.
Mr. William R. Underwood received compassionate release
after 33 years of incarceration. Mr. Underwood is currently a
senior fellow at the Sentencing Project's Campaign to End Life
Imprisonment. He is also a consultant, public speaker, advisor,
and advocate at the Underwood Legacy Fund, where he advocates
for the rights of songwriters, producers, composers, lyricists,
and music publishers.
We welcome all our distinguished Witnesses. We thank them
for their participation.
I will begin by swearing in our Witnesses. I ask our
Witnesses testifying in person to rise and ask our Witnesses
testifying remotely to turn on your audio and make sure that I
can see your face and your raised hand while I administer the
oath.
Witnesses are unmuted.
Do you swear or affirm, under penalty of perjury, that the
testimony you are about to give is true and correct to the best
of your knowledge, information, and belief, so help you God?
Let the record show the Witnesses answered in the
affirmative.
Thank you, and please be seated.
Please note that your written testimony will be entered
into the record in its entirety. Accordingly, I ask that you
summarize your testimony in five minutes.
To help you stay within that timeframe, there is a timing
light on your table and on your screen. When the light switches
from green to yellow, you have one minute to conclude your
testimony. When the light turns red, it signals that your time
is up.
You are now welcomed.
Mr. Osler, you may give your statement.
STATEMENT OF MARK OSLER
Mr. Osler. Thank you, Madam Chair, Mr. Ranking Member.
Thank you for this opportunity to be heard this morning on this
important subject.
I am going to use my time to describe the broken system
that we used to evaluate clemency petitions. The Pardon
Attorney is a part of this broken process, but only a part, and
probably not the most important part.
I have prepared a chart of the current process. It is also
included in my written testimony as well. If you look at the
chart that is here to my left, you will see that there is a
green box at the bottom lefthand corner. What that represents
is--this is a commutation petition--someone in prison usually
preparing the petition themselves. They are going to fill out
the form. They are going to send it in to the Pardon Attorney
staff that is going to do an analysis of it and come up with an
opinion.
Now, they are going to reach out to the local U.S.
Attorney's Office and get their opinion, which will be given
considerable weight going up the chain. Once the Pardon
Attorney staff has their report, it goes to the Pardon
Attorney, who is going to make an independent evaluation.
Now, from there, it doesn't go to the President. Instead,
it goes to a staff member at the Deputy Attorney General's
Office. That is the middle blue box in the rank of three there.
That staff member is going to make a recommendation, and then,
that goes to the Deputy Attorney General.
From there, it goes to a staff member at the White House
Counsel's Office. After that, it goes to the White House
Counsel. Only after that, after seven sequential steps, does it
go to the President.
This is a terrible process. Whether you think a lot of
clemency should be granted or only just a few, this is a bad
process for getting to the right ones.
Mr. Ranking Member, I would note that, in terms of the
President having input and having the rubric that would be
controlling, having so much separation of bureaucracy between
the President and the people who are doing the evaluation
doesn't help that at all. It is undisputed that no business, at
least no decent business, no successful business, would make
decisions in a process like this.
Now, this process was not designed in any coherent way. It
grew up organically over time. For example, the Attorney
General originally met with the President to advise him
directly about these petitions. Then, that was delegated to the
Deputy Attorney General, who then had a staff member intercede
in between the Pardon Attorney and the DAG. Then, the White
House Counsel got involved. So, over time, as bureaucracy does,
it grew up and it just doesn't work.
A couple of the problems here. One is the sequential nature
of the decisions. This combines with another problem, which is
negative decision bias. No one gets in trouble for saying no.
All the risk is in saying yes.
So, if we think about this as a pipe with seven valves, and
they all have to be opened for any petition, even the best
petition, to get to the end, and they are spring-loaded shut.
No wonder this process doesn't work.
Another problem is that you have two key positions here
that are people who are generalists who are really busy. One of
them is the Deputy Attorney General, who has operating control
of much of the Department of Justice. What has happened with
this process isn't just that the Deputy Attorney General
oversees the process, but personally vets each petition. When
you have 17,000-18,000 petitions, that is just not going to
work, and frankly, it hasn't. The White House Counsel, as well,
of course, has many jobs to do, and this is just one of them.
So, what to do? Well, we just heard about the well-named
FIX Clemency Act. That would eliminate much of this bureaucracy
and, yes, bring the process closer to the President, so that
the President's will about clemency can be respected in a more
direct way.
I want to close by telling you why I care so much about
this. This has become my life's work. In part, it is because I
hate bureaucracy. It is also a matter of faith. My work has
integrity because a core value of my Christian faith--mercy--is
also found in the constitutional pardon power. It is rare to
find a faith imperative that so clearly is also a
constitutional imperative. Even though in my own perspective,
just as a Christian, I know that mercy is a core value of
Judaism, of Islam, and nearly every moral system that is either
religious or secular.
Americans love freedom and we believe in mercy. We just
need to build a machine that reliably can provide us with just
that.
Thank you.
[The statement of Mr. Osler follows:]
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Ms. Jackson Lee. Thank you very much, Professor Osler, for
your testimony. Thank you again.
Mr. Hurst, you are now recognized for five minutes.
STATEMENT OF D. MICHAEL HURST, JR.
Mr. Hurst. Thank you, Madam Chair, Ranking Member, and
Members of the Subcommittee.
My name is D. Mike Hurst. I am a partner in the Jackson,
Mississippi office of Phelps Dunbar, and before that, I served
as United States Attorney for the Southern District of
Mississippi.
I appreciate the invitation to be here today to testify
about the clemency process and the DOJ's Office of the Pardon
Attorney.
Before joining Phelps in January of 2021, not only did I
serve as United States Attorney, but I also had stints as an
Assistant United States Attorney, a nonprofit lawyer, a private
practitioner here in Washington, DC, a congressional staffer,
and as the Madam Chair said, counsel to the Constitution
Subcommittee, which Mr. Nadler was the Ranking Member at the
time.
I am here today, though, to give my perspective on clemency
and the Office of the Pardon Attorney; specifically, in my
experience as a former chief Federal law enforcement officer
and a former Federal prosecutor on the front lines, and also
now, as a criminal defense attorney.
Let me just be clear. The views I am expressing today are
my own. They do not represent my firm, my clients, or anyone
else.
First, during my tenure as United States Attorney, I was
asked by the Office of the Pardon Attorney on several occasions
to give my thoughts on petitions for clemency of defendants who
had been prosecuted in our office. I believe, as a policy
matter, that asking the prosecutor's opinion of a petition is
not only appropriate, but it is vitally important, as no one
knows these defendants and the circumstances surrounding their
criminal cases better than the prosecutor.
As U.S. Attorney, and before that, as an Assistant U.S.
Attorney, my role was not to lock someone up or to keep someone
locked up. Rather, our role as Federal prosecutors was to
ensure that just was done.
For brevity's sake, I will summarize or paraphrase Justice
Sutherland's 1935 language in Berger v. United States which
says,
The United States Attorney's interest in a criminal prosecution
is not that it shall win a case, but that justice shall be
done. As such, he is in a peculiar and very definite sense a
servant of the law, the twofold aim of which is that guilt
shall not escape nor innocence suffer. It is as much his duty
to refrain from improper methods calculated to produce a
wrongful conviction as it is to use every legitimate means to
bring about a just one.
Thus, in my role as U.S. Attorney, I recommended approval
of some petitions and disapproval for others--always with a
mindset towards ensuring that justice was done. DOJ's policies
that clemency petitions should only be granted in extraordinary
circumstances, and clemency should be exercised rarely, are the
correct judicious approaches to this issue. These approaches
ensure that justice is done.
Second, the process for clemency entrusted to the Pardon
Attorney is, and has been, working and does not need revising
or wholesale revamping. The attorneys in the Office of the
Pardon Attorney, in my experience, have always been
professional, fair, methodical, and deliberate--exactly what we
all should want and expect of those reviewing petitions of
people who want out of prison.
I have never experienced any type of bias or skewed
judgment from the Pardon Attorney, either for or against
petitions, nor did I ever hear or witness any type of pressure
on the Pardon Attorney from prosecutors or others within the
Department of Justice.
The multiple possible veto points throughout the process is
not a flaw, but, rather, a positive part of the system, as
those checks and balances, these multiple points of review, are
reevaluating someone who has been investigated, prosecuted, and
convicted for violating our criminal laws, and we should make
damn sure that they are not a threat to society, and run all
the traps necessary to ensure that before releasing them back
to the public.
Finally, there are some advocating for creating a new,
independent Federal government agency to address these
perceived issues, but believe President Ronald Reagan had it
right when he said, ``The closest thing to internal life on
Earth is a government program.'' The last thing we need is
another government agency or program.
Even if Congress were successful in establishing this new
U.S. Clemency Board, as the Ranking Member has pointed out, the
President has almost unlimited authority to grant clemency. So,
there would be no authority requiring the President to use,
rely upon, or defer to this new government agency.
In conclusion, the clemency process today is not perfect,
but it works relatively well, considering the resources of the
Office of the Pardon Attorney and the professionalism that the
office exhibits. Clemency should be granted only in rare,
extraordinary circumstances, and petitions for clemency should
continue to have many levels of review before they reach the
President's desk.
If a President wants to expedite the process, he has more
than enough authority to do so.
Ms. Jackson Lee. The gentleman's time has expired. You can
finish.
Mr. Hurst. Yes, Madam.
Those who want to simply release more criminals, defund our
police, and not enforce our criminal laws will only further
increase already rising crime throughout America and make
America less safe.
Thank you.
[The statement of Mr. Hurst follows:]
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Ms. Jackson Lee. The gentleman's time has expired.
Let me, for the record, make sure that Mr. Hurst's full
name is complete. It is D. Michael Hurst who is the Witness
that we just heard.
Thank you so very much for your testimony, Mr. Hurst.
I now wish to recognize Professor Barkow for five minutes.
STATEMENT OF RACHEL E. BARKOW
Ms. Barkow. Thank you, Madam Chair, Mr. Ranking Member,
Members of the Subcommittee. I am honored to testify before you
today.
So, as you have heard, there are currently approximately
18,000 clemency petitions awaiting answers from President
Biden. Almost 15,000 of those are commutation petitions seeking
relief from excessive sentences being served right now, and
another 3,000 petitions are requesting pardons.
Unfortunately, clemency appears to be a low priority for
the current Administration. It inherited a backlog of 14,000
petitions, and instead of urgently addressing it, the backlog
has grown by more than 28 percent.
It is hard to overstate the level of mismanagement
responsible for this unconscionable backlog. These people, many
of whom have been waiting for years, deserve answers to their
petitions. Yet, the Administration has done nothing to suggest
it has any grasp of the exigency of the situation. It hasn't
changed any aspect of the clemency process that created this
backlog.
President Biden granted just 78 clemency petitions so far:
Three pardons, 75 commutations, leaving 99.6 percent of the
rest of the petitions in their holding pattern. It is not just
the paltry number, but the nature of the grants that shows just
how narrowly the Administration is viewing this power.
Most of the grantees were already released to home
confinement under the CARES Act, but it is hard to see why only
a few dozen people released under the CARES Act merited such
relief, instead of all of them as a categorical matter.
The Administration also noted that its recent grants
included individuals who would be sentenced differently today
under laws like the First Step Act that shorten sentences.
Here, too, the Administration granted only a handful of these
cases out of thousands just like them. If this were in any
other area of government responsibility, there would be alarm
bells ringing about the ineptitude of those in charge.
Sadly, because clemency often fails to get the attention it
deserves from the press and public officials, those calls
haven't come as loudly as they should. Make no mistake, the
failure to take drastic action to address the current backlog
of clemency is presidential malpractice.
So, the question is what to do about it. In my written
testimony and my prior testimony to you, I have urged Congress
to use its legislative authority to create other second-look
mechanisms, prevent excessive sentences from occurring in the
first place, and create an expungement option.
Congress can also use its authority to improve the clemency
process itself. Congress can't dictate how a President should
exercise the constitutional power of clemency, but it can
provide funding and incentives for needed institutional
changes.
The President currently relies on a process in the Office
of the Pardon Attorney, as you have heard, and that is funded
by Congress. Congress could, instead, fund a separate advisory
board that exists outside the Department of Justice to provide
advice to the President on clemency. Taking clemency out of the
Department of Justice would address the bureaucratic
duplication that Professor Osler described and that is
responsible for much of the holdup in petition processing.
It would also address the fundamental conflict of interest
in having the same agency that prosecuted all those cases
reviewing them for clemency, a structure that has resulted in
egregiously low clemency grants in all recent presidential
Administrations.
Congress can't require a President to use that board, but a
designated funding stream for a clemency board would signal the
broad support this idea has, and it would be more likely that
it would be consulted, especially when a President like
President Biden has already indicated his desire to do this as
part of the Biden-Sanders Unity Task Force.
While the proposal doesn't have to mirror the one in the
FIX Clemency Act, that is one option for making this change.
Setting up a permanent board is, in my view, the preferred
option, but a second-best scenario would be to create at least
a temporary board to deal with the clemency petition backlog.
President Ford used a temporary board to address a large number
of cases associated with evasion of the Vietnam draft, and that
could be a model for this approach.
A less effective strategy, but better than nothing, would
be for Congress to increase dedicated funding for positions in
the Office of the Pardon Attorney. Eighty of these have been
approved, but they have not been funded because of the
continuing resolution.
The reason this approach is less desirable is that it would
address only delays from initial review in the Pardon
Attorney's Office, when a big reason for the backlog is the
failure of the Deputy Attorney General and White House
Counsel's Office to act.
For example, we know that, in fiscal year 2020, 63 percent
of the pending petitions were awaiting decisions by the DAG or
White House Counsel. They had already been processed through
the Pardon Attorney's Office.
So, a board that is outside of DOJ would definitely be the
preferred approach, in my view, and I urge Congress to do that
or take other measures to create replacement mechanisms for
clemency.
Thank you for allowing me to testify and share my thoughts.
I am happy to answer any questions you might have.
[The statement of Ms. Barkow follows:]
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Ms. Jackson Lee. I thank the gentlelady for her testimony.
Now, I recognize Prosecuting Attorney Murray, who is
recognized for five minutes.
STATEMENT OF THE HON. MORRIS MURRAY
Mr. Murray. Thank you.
Good morning, Chair Jackson Lee, Ranking Member Biggs, and
Members of the Judiciary Committee.
My focus today is really I want to take a pause, or I hope
this Committee will take a pause, and think about public safety
and the impact on local communities.
My name is Morris Murray. I am the elected Prosecuting
Attorney for Defiance County, Ohio. I, first, served as an
Assistant Prosecutor back in 1985 before being elected to my
current position in 2009. I am past member of the National
District Attorneys Association Board, and I am also a past
President of the Ohio Prosecuting Attorneys Association.
I am also proud to add that, prior to beginning my law
career, I served as police officer for several years. I think
that it is important that I compelled to note that today's
testimony is being on the heels of National Police Week, a time
to recognize and salute our entire law enforcement community.
I would like to echo and support the comments of my
colleague, former Prosecutor Hurst. During my career--and I am
coming from the perspective of a local front-line prosecutor--I
prosecuted over 5,000 felony matters, all levels of severity. I
worked extensively for 30 years with a multi-jurisdictional
narcotics task force. We are situated here in northwest Ohio,
and although our community is relatively small, we are in a
situation where we often are the crossroads for drug
trafficking and other serious offenses coming through and
around our community from larger metropolitan areas.
This is a dangerous--and I am sorry to use the old cliche--
but this is a slippery slope. To the extent we allow this slope
to continue in this direction, we are going to be compromising
public safety.
As this Committee exercises its oversight role with respect
to clemency and the Pardon Attorney, I am compelled to express
grave concern regarding the likelihood that increasing the
number of offenders being released, or anticipated to be
released, we really need to take a serious and really
nonpolitical, apolitical look at the impact on public safety,
on State and local law enforcement, and the available
resources.
Many of the offenders being released have committed very
serious crimes. I certainly wouldn't dispute that there are
some wonderful success stories that have been referred to in
some of the earlier testimony, and anecdotally, those are
there. That is wonderful.
The reality is there are already and likely to be
substantially many, many more stories that are more tragic. The
reality is that offenders involved in this level of serious
drug offenses have been connected to the drug culture for a
long time. While we can talk about elderly prisoners or ill
prisoners, the reality is we are going to see many, many 20-,
30-, 40-year-olds that are more likely to be granted clemency
if we loosen up this process.
This policy is coming at a time when we are seeing a major
spike in serious crimes, violent crimes, increasing and
staggering numbers of drug-related deaths, coupled with an
effort by some to redirect law enforcement resources away from
what our first priority should be, and that is public safety.
There is a common misconception that offenders convicted of
Federal drug laws, or any drug laws, for that matter, are
nonviolent offenders. The reality is this culture lends itself
to violence. The business model itself is full of violence. Use
of violence and intimidation is part of the business.
We have a widespread distribution system throughout this
country that is putting large amounts of drugs on the streets
of all kinds--dangerous and deadly drugs. Even though small
amounts may show up in communities like mine, they are coming
through this distribution process.
Offenders released that have been involved, deeply
involved, in this process, commonsense would suggest they are
very likely to get back involved. Money drives this. Lots of
cultural issues come into play.
You are shifting the burden to local law enforcement and
State authorities. Crimes will be enforced; drug laws will be
enforced at the State level. If you shift what the Federal
enforcement system can do in the holding of serious offenders
accountable, you are going to shift that burden to local
communities.
I appreciate the opportunity to speak today. I come from a
perspective of a front-line prosecutor and public safety is our
number one priority.
Ms. Jackson Lee. The gentleman's time has expired.
Mr. Murray. Thank you.
[The statement of Mr. Murray follows:]
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Ms. Jackson Lee. The gentleman's time has expired. Thank
you.
I recognize Ms. Taifa for five minutes.
STATEMENT OF NKECHI TAIFA
Ms. Taifa. Thank you very much, Congresswoman Sheila
Jackson Lee, Chair Nadler, and Members of this Committee.
Thank you for convening this important hearing. You have my
comprehensive written testimony. So, I will spend my five
minutes focusing on two issues.
First, the need to consider clemency for categories of
people in general, shining the spotlight on that of, quote,
``old law elderly prisoners,'' unquote, and second, the issue
of posthumous pardons.
If mass incarceration is ever to be abated, it is critical
that intentional steps be implemented that expand the number of
people eligible for relief. Individual commutations are not
enough to tackle the enormity of this challenge.
Thus, in addition to clemency petitions considered on a
case-by-case basis, a categorical approach to releasing groups
of these deserving candidates for clemency must be seriously
considered.
At the beginning of this Administration, the Justice
Roundtable issued a report, ``Transformative Justice,'' and in
it, we outlined some categories that commutation could include
such as those who had unsuccessfully petitioned for
compassionate release; elderly prisoners, those serving
sentences that have since been deemed unjust, but not made
retroactive; those serving excessively lengthy prison sentences
as a result of exercising their constitutional right to go to
trial, euphemistically known as the ``trial penalty.''
We stress that the sentences of people convicted of
marijuana offenses must be commuted. Indeed, there is a robust
campaign, led by Weldon Angelos, to that effect.
We added that those who are COINTELPRO era political
prisoners who remain federally incarcerated should also be
granted clemency, such as Dr. Mutulu Shakur, Veronza Bowers,
and Leonard Peltier.
The report stress that, regardless of whether an individual
fits into any of the categories suggested above, it is critical
that the emphasis be on who the person is today and any post-
conviction achievements they have attained, as opposed to their
conviction of record.
The category I wish to highlight for clemency at this time
is that of old law Federal prisoners who were sentenced for
offenses committed prior to November 1987, when Federal parole
was abolished in the U.S. before the Sentencing Guidelines went
into effect. Grouped together, these people are referred to as
``old law prisoners,'' and they are among the very oldest and
longest incarcerated in the Federal system. Many are in their
late sixties, seventies, and even eighties. Many have
underlying medical conditions. They pose no threat to public
safety. Presidential clemency is their only recourse and their
last resort.
The U.S. Parole Commission engages in routine parole
denials, and because of exclusion from the First Step Act, no
one sentenced under the old law is eligible to turn to courts
for compassionate release, unlike every other Federal prisoner.
Creating a rebuttable presumption for release for this
category of incarcerated people will correct both the inaction
of the U.S. Parole Commission, as well as congressional
oversight, in omitting old law prisoners from First Step
reforms.
The second issue I would like to briefly highlight is that
of the posthumous pardon. While there is no question that
pardons are most beneficial to those who are living, there are
times when the granting of exceptional posthumous petitions are
important and necessary to show the discredited values of the
past are no longer the values of the present.
There is precedent across parties line for posthumous
pardons granted by the President. The Ford, Bush, Clinton, and
Trump Administrations have each issued posthumous pardons,
which I outlined in my written testimony.
The request for a posthumous pardon for early 20th century
civil rights leader Marcus Garvey has been a multi-decade
effort to right a wrong committed by the U.S. Government nearly
100 years ago, and it has the support of millions. President
Calvin Coolidge recognized the widespread abuses in this case
in 1927, and he commuted his sentence. Despite this
commutation, his name is still tarnished by the stigma of his
conviction.
His son, Dr. Garvey testified before this Judiciary
Committee in 1987. Congressman Rangel, Congresswoman Rebecca
Clarke, and others, have issued resolutions highlighting
Garvey's accomplishments as a human rights leader and calling
for his exoneration.
So, in conclusion, the President should use all the tools
in the toolbox with respect to clemency.
We thank this Committee for examining all these issues.
[The statement of Ms. Taifa follows:]
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Ms. Jackson Lee. I thank you.
Now, Ms. James, you are recognized for five minutes.
STATEMENT OF ANDREA JAMES
Ms. James. Good morning, and thank you, Madam Chair, and
Mr. Ranking Member. The National Council for Incarcerated and
Formerly Incarcerated Women and Girls is the only national
advocacy organization founded and led by incarcerated and
formerly incarcerated women and girls.
Organizing begin in a Federal prison yard with a group of
women, including myself, who wanted policymakers instituting
criminal justice reform to hear the voices of formerly
incarcerated people, those who understand the harm the current
system inflicts and have the expertise to create an alternative
system that recognizes each person's humanity.
As formerly incarcerated women, we believe a prison will
never be the place to address the economic and psychological
reasons women end up in prison. Prison most often causes
further social and economic harm and does not increase public
safety.
The prison experience increases trauma in women and, if
they are mothers, to the children they are separated from. It
deepens poverty in the individual lives of incarcerated people
and the overall economic stability of their communities.
Although our long-term goal is to end the incarceration of
women and girls, we also working to address conditions of
confinement for those living inside of prisons. We support
women seeking compassionate release and work to raise awareness
of the horrific conditions in our prisons and jails.
We support women seeking clemency. In the past several
decades, clemency has become politicized. It is the notion that
clemency is a gift is wrong. Clemency is an executive power
that is enshrined in the Constitution. Justice Rehnquist called
it the fail-safe of our legal system. It has been the
foundation of justice since ancient times.
The idea that granting clemency is being soft on crime is
wrong. Clemency is based on an analysis of who the person is
today, not what they did years or decades ago. People who have
educated themselves, aged out of crime, are ill or elderly do
not need to be in prison. Their incarceration is not punitive,
it is vindictive.
Clemency is empathy in action. Anyone who claims to
empathize with incarcerated people must support clemency for
those who made decisions in difficult times and have grown and
left their mistakes behind.
Average Americans understand this. Sixty-two percent of
voters recognize that reducing prison populations would
strengthen communities by reuniting families and saving
taxpayer dollars that could be reinvested in communities.
Clemency rebuilds families, fixing the harm caused by the
Adoption and Safe Families Act. Two-thirds of people in BOP
custody have minor children. That means 65,600 mothers are in
Federal prison unable to raise their children. Put another way,
that is 1.7 million children whose mothers are absent due to
incarceration.
The situation is, however, even more heartbreaking than
that. Every tenth mother will never see their children again,
even after they are released from prison. Approximately 11
percent of incarcerated women cannot leave their children with
family members, and thus end up in the foster care system.
The Adoption and Safe Families Act of 1997 limits the
amount of time any child may remain in foster care. Although
creating a stable environment for children is desirable, ASFA
requires no States to terminate--requires States to terminate
parental rights and place children in an adopted family. This
destroys the family of an incarcerated mother who could not
place her children with a spouse or family member.
Clemency also rebuilds families, fixing the harm caused by
conspiracy laws. Conspiracy prosecutions are a major weapon of
the war on drugs that disproportionately harm minor players,
mainly women and people of color.
The horror caused by conspiracy laws can be best
illustrated by the tragedy of Michelle West, who is currently
serving a two life plus 50-year sentence for a murder.
My time is short. I do want to say that conspiracy laws are
a toxic remnant of the failed war on drugs and must be
reformed. The only way to fix this injustice is to reform
conspiracy laws to bring them in compliance with basic
principles of due process.
Lastly, I do want to point out that there are several women
who have come home who were granted clemency who have done a
remarkable contribution to their communities. One of them is
here with us today, Danielle Metz, who is our Director of
Clemency at the National Council.
Dani was sentenced to serve three life sentences plus 20
years in the Federal system. Her sentence was commuted, and she
is a remarkable contribution and example of what happens when
we grant women clemency.
Thank you.
[The statement of Ms. James follows:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Ms. Jackson Lee. The gentlelady's time has expired. I now
recognize Mr. Hernandez for five minutes. Mr. Hernandez.
STATEMENT OF JASON HERNANDEZ
Mr. Hernandez. Good morning. Members of the Congressional
Subcommittee, I'm very deeply sorry I cannot be present today
at this very important legislation addressing clemency reform.
Thank you for allowing me this opportunity to speak on my
behalf and those that are incarcerated.
My name is Jason Hernandez, and I would like to briefly
tell you who I was. I was a drug dealer, which I became at the
age of 15. I was a defendant when at the age of 21, I was
indicted by the Federal government for distributing crack
cocaine and sentenced to life without parole plus an additional
term of 320 years.
I was a prisoner. In prison, I was a jailhouse attorney.
Thirteen years into my sentence, I would write the most
important letter and petition of my life. This letter and
petition I sent to President Barack Obama on September 21,
2011, asking him to commute my sentence of life without parole.
On December 19, 2013, President Obama answered my prayers
by commuting my sentence to 20 years. I would find out in 2018
from a New York Times reporter that President Obama received my
letter and he read it. President Obama would go on to give
clemency to 1,715 people, five of the 500 were serving life
without parole.
President Obama's show of good grace, mercy, and
willingness to exercise his power to pardon so abundantly has
been done by other Presidents of the United States, typically
in relationship to a war. President Abraham Lincoln would issue
64 pardons to Confederate soldiers for war-related offenses.
President Andrew Johnson issued sweeping pardons to
thousands of former Confederate officials and soldiers after
the Civil War. President Jimmy Carter granted unconditional
pardons to hundreds of thousands of men who evaded the draft
during the Vietnam War.
In 1971, the United States began a war which was called the
war on drugs. Since the commencement of the war on drugs,
millions of people have been arrested, charged, indicted, and
sent to prison, a majority of which were Latinos or African
Americans.
I have stated above how the Presidents of the United States
have exercised the power to pardon people and in some committed
an Act related to war initiated by the United States. Some of
these wars were deemed controversial, some deemed necessary.
The war on drugs: Controversial, necessary? Could be arguments
to support both sides.
What we do know is that it was a war that was not thought
out, misguided, ill-advised, racially biased, and has hurt
Black and Brown communities more than it has helped them. At a
time when our communities needed sidewalks, roads, and better
schools, we got more prisons. At a time when we needed mentors
and teachers, we got more police.
In acknowledging the war on drugs is a failure and should
come to an end, one of the olive branches that should be
extended is clemency. Former Supreme Court Justice Anthony
Kennedy stated to the American Bar Association on 2003, a
people confident in its laws and institutions should not be
ashamed of mercy.
I hope more lawyers involved in the pardon process will
say, Mr. President, this young man has served--hasn't served
his full sentence, but he has served long enough. Give him what
only you can give him, give him another chance. Give him a
priceless gift. Give him liberty. For still, the prisoner is a
person, still he or she is part of the family of humankind.
Earlier I stated who I was. Now, since my release from
prison in 2015, let me tell you who I am. I am a criminal
justice reformer and the founder of Crack Open the Door and Get
Clemency Now. I have contributed to nearly a dozen individuals
being released early from prison, nine of which were serving
life without parole.
I am an author who has written a book called Clemency Now,
Get Clemency Now, which teaches people incarcerated and their
families who to put together powerful clemency petitions. I am
the 2017 Black Chamber of Commerce Trailblazer and Community
Civic Leader of the Year.
I am the 2018 McKinney Volunteer of the Year. I am the 2021
Leadership McKinney Alumnus of the Year. I'm also the 2022
NACDL's Champion of Justice of the Year.
I am also the founder and Executive Director of At Last,
which is a leadership program for Latino high school students
which teaches them how to become leaders in their school and in
their community.
I was once Inmate No. 07031078, and now through clemency
and only clemency, I am once again Jason Hernandez. I hope and
pray Congresswoman Ayanna Pressley's historic legislation to
transform our nation's broken clemency system and address the
growing problems of mass incarceration continues with the
necessary steps so that it becomes law.
There are more prisoners like me in there. There are more
Kemba Smith Pradias in there, there are more Bill Underwoods,
and there are more Sharanda Joneses in there. With this
legislation, we can free them all.
Thank you for this time, and God bless you all, and God
bless this great country.
[The statement of Mr. Hernandez follows:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Ms. Jackson Lee. Thank you very much, Mr. Hernandez.
Mr. Underwood, you are recognized for five minutes.
STATEMENT OF WILLIAM UNDERWOOD
Mr. Underwood. First, I want to thank Chair Jackson Lee and
Chair Nadler, Ranking Member Biggs, and the Members of the
Subcommittee for holding this hearing today and for sharing
this space to hear stories about the importance of second
chances for people like me and families like mine.
My name is William Underwood. I'm a 68-year-old Senior
Fellow with the Sentencing Projects Campaign to End Life
Imprisonment. Over 50 years ago, I was teenage father in
Harlem. I needed to provide for my family, and there was one
way to make fast money. I became involved in the drug trade to
ensure that my son didn't know the hunger and pain I did.
I previously testified to this Committee about the impact
of the war on drugs on me and my community and the racial
injustice at its heart. I was ultimately sentenced to life
without the possibility of parole and a concurrent 20-year
sentence for leading a violent drug operation during the 1970s
and early 1980s.
During my incarceration, I committed myself to growth and
had no infractions in 33 years. I parented my children from
behind bars, and they became steadfast advocates for my
release. In the fall of 2014, President Obama announced the
clemency initiative for people sentenced under mandatory
sentencing laws.
My clemency petition received support from entertainers,
musicians, faith leaders, reformers, conservatives, sports
figures, civil rights leaders, scholars, industry leaders,
people I mentored in prison, and most of all my children.
President Obama ultimately commuted the sentences of 1,715
people convicted of Federal drug crimes. I was not one of them.
Instead, following the passage of the First Step Act, I was
granted compassionate release in January 2021, at 67 years old.
Judge Sidney H. Stein's release order cited letters from the
men I mentored while in prison who said that I created a
culture of responsibility among the men around me. Since my
release, I've worked to create second chances for others.
I was not an outlier in prison. There are many more people
like me in Federal prisons. Many are older--many who are older
and sicker, who have been denied compassionate release.
Clemency is valuable. It should be available to all people to
safely return to the community regardless of the crime or
sentence. Clemency should also be granted far more frequently.
Clemency should never be someone's only hope of freedom.
There are three important ways that Congress could create
more second chances today. First, Congress should pass the
First Step Implementation Act and COVID-19 Safer Detention Act
of 2021. The First Step Act reduced mandatory minimum sentences
for drug offenses but was not retroactive.
The First Step Implementation Act would fix that inequity.
Among other provisions, it would allow courts to give a second
chance to individuals who have served at least 20 years for
crimes they committed as minors.
The COVID-19 Safer Detention Act pf 2021 would also help to
reduce excessively lengthy sentences by expanding release
opportunities for elderly or terminally ill individuals. It
would give compassionate release eligibility to people
sentenced before November 1, 1987.
The bill also includes urgent provisions to protect the
lives of elderly individuals by adding COVID-19 vulnerability
as the basis for compassionate release and shorten the judicial
review process for early release during the pandemic.
Second, Congress should transfer jurisdiction of older
individuals to Federal courts so that they can receive a
meaningful opportunity at parole. People sentenced in Federal
courts before 1987 are entitled to parole hearings every two
years.
People age of out of crime, and old law individuals are
elderly and have a low risk of recidivism. Few people receive
parole.
In 2021, the U.S. Parole Commission granted parole to less
than 20 percent of old law individuals who received hearings,
despite the health emergency in Federal prisons. We believe
Federal courts are better equipped to fairly judge whether
these individuals deserve parole.
Finally, Congress should pass legislation to allow
everyone's sentence to be reassessed after ten years. Ten years
is long enough to see how someone has grown and changed and to
reevaluate whether they should go home.
That's why in 2019 Senator Booker and Representative Bass
introduced The Second Look Act, which would give all people in
the Federal prison system a chance to have their sentence
reviewed after ten years.
Receiving a second chance shouldn't be an extraordinary
event. If we believe in redemption and the rule of law and
acknowledge that our criminal justice system has been biased or
too harsh, it should be routine. My story should not be rare.
I urge you to consider all the men and women like me.
Please remember their dignity, their worth, their loved ones,
and their vulnerability as they grow old behind bars, and give
them a path home. Thank you.
[The statement of Mr. Underwood follows:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Ms. Jackson Lee. Thank you very much, Mr. Underwood, for
your testimony. Thank you for all your statements, for your
opening statements, and for your contribution to this hearing.
We will now proceed under the five-minute rule with
questions. I will begin by recognizing myself for five minutes.
It is important to realize how many people we have
incarcerated and the desire for them to start anew or to
contribute to society.
Mr. Osler, help us understand the impact of soliciting the
local prosecutors and giving that considerable weight for
someone who's been incarcerated and has a whole new attitude
and change of life. Can you explain that conflict of interest
and how other clemency process models would prevent that
conflict?
Mr. Osler. Yes, thank you for that important question. One
thing I want to make clear is that I don't think anyone is
talking about cutting DOJ completely out of the process where
they would not have a voice. It is important that DOJ has a
voice and people who know what the core imperatives are there.
However, I will say this about going back to the local
prosecutors, that I was an Assistant United States Attorney,
and there's something that prosecutors know, and that is that
there's a deep moral commitment to work.
That is a good thing, because when I'm asking for a
sentence for someone like Mr. Hernandez, I'm standing 20 feet
away from someone and saying that I want that person to miss
their child's wedding and not be--
Ms. Jackson Lee. Mr. Osler, my time is short, I have other
questions--
Mr. Osler. Well, I will say--sorry. Okay, just that there
is a deep that person has, and it's tied to the moment of the
crime, and it doesn't take into account how people change over
time. These petitions often are 20, 30, 40 years later, and
that deep commitment is tied to a different point in time.
It doesn't account for the change in the person's life,
including some of the changes that we heard about from some of
the other Witnesses here.
Ms. Jackson Lee. Thank you. Professor Barkow, tell me why
you support the creation of a task force of Border Commission
very briefly. I do have other Witnesses that I want to
question, thank you.
Ms. Barkow. I'm in favor of the creation of an advisory
body that exists outside the Department of Justice:
(1) It will help alleviate that duplication of effort and get
rid of some of the bureaucracy.
(2) It won't have the same conflict of interest and the people
appointed by the President could have relevant expertise in the
kinds of questions that come up with clemency in evaluating how
that person is today.
(3) I think when you have a specialist body like that, it can
be more efficient and get petitions processed more quickly, and
it can be a good resource for the President.
I should say I don't think any of this replaces the
President's authority. I agree that it is 100 percent within
the President's prerogative to grant or deny. It would provide
the President with better sources of information and an
efficient process, as opposed to what the President is getting
now, which is effectively nothing, which is a backlog of 18,000
people.
They're not getting a yes, they're not getting a no,
they're not even getting a maybe. They are just sitting in some
kind of purgatory. Creating an advisory board would help cut
that red tape, get rid of the conflict, and give the President
better advice.
Ms. Jackson Lee. Thank you so very much. Ms. James, I think
we started out by hearing thoughts that all we might be doing
is adding to the criminal element, and that we might be
creating danger. I do want to pay tribute to our law
enforcement during Police Week. We all want to be safe.
You made a very important point that I know, as I have been
working with incarcerated women. Many of them are there for
conspiracy charges that impact women who are grabbed into the
system and given enormous pain. Of course, that completely
implodes in many cases, as do fathers, the family.
Would you comment on that, and that releasing these women
will be a contribution to society, not a detriment. Ms. James.
Ms. James. Thank you, thank you. I would like to comment on
that. I am a former criminal defense attorney. I stood in
countless courtrooms defending women, men, and children. I'm
also a formerly incarcerated woman that served a sentence
inside of a Federal prison.
Madam Chair, but for clemency--but for conspiracy in the
Federal prison system, the majority of the women who are
currently incarcerated in our Federal prisons would not, could
not justify the prosecution, indictment, and sentencing at the
lengthy sentences that these women received.
Conspiracy is something that we must take a very deep look
at. We have been doing a years' long research study with
incarcerated women in the Federal system. It causes egregious
harm, disparately impacts women, particularly women with
children, separating them for unconscionable periods of time
for sentences that otherwise could not be justified.
Ms. Jackson Lee. The gentlelady's time has expired, and my
time has expired. Thank you very much.
Now, my privilege to yield to the Ranking Member, Mr.
Biggs, for five minutes.
Mr. Biggs. Thank you, Madam Chair, and again, thanks to the
Witnesses for being here for some very enlightening and
informative testimony.
I want to go back to my opening comments and try to address
them with how I see this--how I see it now. Professor Osler, I
appreciate the diagram that you put up there. Professor Barkow,
I read your statement, and I find it very interesting as well.
I want to, we have a real short amount of time, so I'm
going to keep you on a short leash. I do want your responses to
this. Because when you talked about this, both of you, and I
wrote down next to yours--Ms. Barkow, I wrote, ``creating a
system outside the system.''
I get it, this is the system as it currently sits. This is
the system--it grew organically. The President controls the
system is my point, and I think we all agree to that.
My question is, if you create a system outside the system,
which is kind of what we're talking about, are you not just
sticking another box on that board? That would be my concern if
you really want to streamline this. I'll go to you first, Ms.
Barkow.
Ms. Barkow. There is no guarantee that's not the case. I
can see that, because you can't force the President to use it
if you create an additional body.
Though, that it wouldn't work out that way, because, one,
this President has claimed that he wants to create a body
outside of the Department of Justice, he just hasn't done it.
I think Congress creating something like this gives it an
imprimatur that Congress thinks it's a good idea. The idea
would be having that agency set up. I would think of it more
like an advisory board that would kind of sell itself because
the President would find it to be useful.
There's no guarantee, and you could find that the President
decides ``I don't want to use that, I want to stick with this.
Or I'm going to take that and finally''--
Mr. Biggs. I hate to cut you, but go to Professor Osler
real quick.
Mr. Osler. Yeah, we would hope that the President would not
make that bad choice. I'd point something out, too, that the
President doesn't pick everybody in this chart. That certainly
picks the DAG and sometimes is happy with that choice and
sometimes not. The staff--
Mr. Biggs. Rubric--
Mr. Osler. Well, in essence--
Mr. Biggs. He could change that rubric today. He's approved
only 78 clemencies. We've seen--after President Obama left, he
had 13,000 in the pipeline, you had 14,000 after Trump, you've
got 18,000 today.
Any President, and I'm saying either party or the other,
they're the ones that actually could change the systemic--
because, Mr. Osler, you're describing what I would say is maybe
a potentially systemic problem here.
If it's a systemic problem, there's really--the
Constitution gives one individual the authority to actually
clean up that process. We may send a signal from the Congress,
we may not, and I would suggest that those signals have
probably sent for multiple Administrations.
How do you avoid just putting another box on there? I'm
going to give you about ten seconds because I got to get some
other questions answered.
Mr. Osler. Yeah, well, I just want to note that when the
President sets a rubric and says I want these people out, this
system had done terribly. For example, most recently, we had
President Biden saying I want people from the CARES Act--We got
a handful.
Mr. Biggs. I get it, yeah. As probably everybody sitting at
this table and throughout the room to say the rubric doesn't--
might have some real issues, okay. So, I thank you for that.
I want to get to you, Mr. Murray. What role do the actual
victims of violent crime, because we have about eight percent
of everybody that's in Federal prison is requesting clemency.
So, what role does a victim of violent crime have in this
current rubric or should have in clemency decisions?
Mr. Murray. Is that question addressed to me? I'm sorry, I
couldn't hear--
Mr. Biggs. Yes, yes.
Mr. Murray. Part here. My perception is that's a very
minimal role. The other difficulty there is how you define
victim. Talk to a mother whose 20-year-old son just died of an
overdose drug that was trafficked to that 20-year-old, that
mother's a victim. There's a lot of variety on that question.
I don't believe there's significant input. I keep hearing
the term bias from the side of the prosecutors, but a number of
the panelists and a number of the people involved in the
process come from the defense side, from the offender's side.
Where do we balance potential bias--
Mr. Biggs. Okay, I hate to cut you off, because I
appreciate it. I wanted to get to Mr. Hurst.
You've experienced this on both sides, defending and
prosecuting. Where does the victim fit in this process?
Mr. Hurst. The victims should fit in with this process.
This is the whole point of law enforcement, to keep us safe and
to prevent people from becoming victims. So, yes, victims
should have a role in this process, just as they have a role
when we prosecute Federal crimes.
We have a victim Witness coordinator in every U.S.
Attorney's office in the nation, and we consult with the
victims when we prosecute cases.
Mr. Biggs. Thank you, my time has expired.
Thank you, Madam Chair.
Ms. Jackson Lee. Thank you, I now recognize the Chair of
the Full Committee, Mr. Nadler, for five minutes.
Chair Nadler. Thank you, Madam Chair.
Professor Osler, because the Federal system lacks
expungement opportunities for individuals, the only relief they
can get from the collateral consequences of conviction is
through the clemency process.
Can you explain how the lack of access to clemency, along
with the burden of a criminal conviction, prevents successful
reentry and reintegration?
Mr. Osler. Yes, I can. Part of the reason is I run a clinic
at my school where we represent people for pardons. We know
what it means to them. Every case is going to be different, of
course, but for example, it may seem mundane, but there are
pardon petitions from people where what they want to do is go
hunting with their grandchild.
They can't because they can't possess a gun. That may be a
little thing to some people, but it's a big thing to that
grandfather. There are people who can't get a license to do the
job that they want to do.
Perhaps most importantly, many people just want to feel
whole again. They want to feel that they have moved past
their--that it is recognized that they are no longer the person
that committed that crime, and that's what pardons can do.
Unfortunately, this system serves commutations poorly. It
serves pardons even worse. Thank you.
Chair Nadler. Why do you say that it serves pardons even
worse?
Mr. Osler. Well, for the last--during the Obama presidency,
during the Biden presidency, there's been an emphasis on
commutations. Because the bandwidth is so thin from the pardon
attorney on up, when they're focusing on commutations, pardons
get shunted aside.
Chair Nadler. Thank you. Professor Barkow. In your
testimony, you discuss the possibility of removing the clemency
process entirely from the Department of Justice. Can you
explain how that would help address the bureaucrat barriers and
increase relief for individuals seeking clemency?
Ms. Barkow. Sure. It would effectively get rid of that
chart. So, you would have a body that replaces it, provides all
the information to the President, and then the President still
makes the ultimate decision. The President could tell that
advisory body how he wants to run.
He could say that these are the cases I want to prioritize,
this is the way I want you to look at petitions. I want you to
favor this category or that category, or this kind of person.
What you would effectively have is a dedicated board that is
supposed to just do clemency.
What you have in that chart is you have one office that
does that, which is the Office of the Pardon Attorney, which is
woefully understaffed. Then it has to go through these other
two places in the chart where the White House Counsel and the
Deputy Attorney General, they just are prioritizing other
things, and not unreasonably so.
So, placing an advisory board that is just designed for
clemency gives you the benefit of specialization and
efficiency. It takes away any kind of bias that exists from
having the same agency that brought the case make the final
decision.
You still get input from the Department of Justice; you
still ask about facts of the case from prosecutors. You have it
evaluated by an objective party that doesn't tilt on one side
or the other, it's just trying to think what is the best
outcome and advice to give the President.
Chair Nadler. Thank you. Ms. Taifa, in your testimony you
discussed the need for clemency to fix past wrongs that led to
mass incarceration, such as mandatory minimums and other harsh
sentencing. How can improving the clemency process address the
ongoing racial disparities in the criminal justice system to
make the system more equitable and fairer?
Ms. Taifa. In my testimony, it was through instance
categorical clemencies, looking at groups of people. Because
mass incarceration has been so massive, the solution to it
needs to be massive as well.
There is precedent for it. We have talked about the Ford
clemencies for Vietnam-era draft resistors, that happened also
with respect to Carter. It was very effectual. There was no
danger to public safety or anything along those lines.
It sought to correct issues and help to bring--heal the
nation, because that was a very controversial time. Mass
incarceration is controversial, and--
Chair Nadler. Excuse me, but that was a categorical
clemency to an entire class of people. You're not talking about
that.
Ms. Taifa. Well, actually, I am. I'm talking about various
classes of people. One of which I spoke of was the class of old
law prisoners who were sentenced before 1987, before the
sentencing guidelines went into effect.
They don't have any recourse, and clemency is basically
their only avenue that they have for release. They're no
benefit from the First Step Act compassionate release
processes, and the parole board has been basically ineffectual.
Chair Nadler. Thank you very much, my time has expired. I
yield back.
Ms. Jackson Lee. I thank the Chair. I now recognize Mr.
Gohmert for five minutes.
Mr. Gohmert. Thank you, Madam Chair, appreciate all the
Witnesses' input today.
I heard Dan Lungren, a Member of Congress, shortly after I
got here when the discussion in this Committee was about the
gross unfairness of having so much more severe sentences for
crack cocaine as compared to powder cocaine. We were told that
was racist to even have that.
Dan Lungren had been here when that was passed. He pointed
out, and I went back and pulled some articles and found out
that he was right, that when the extraordinarily higher
punishment for crack cocaine was passed through this Committee
in the House, there were Members of the Congressional Black
Caucus, including Charlie Rangel, that said if you vote against
this, then you're in favor of destroying the Black community.
That this crack cocaine is just a poison to the community, and
we have got to have these more severe sentences.
So, it was passed. You had a Committee, you had all kinds
of research. For those of us that have been sentencing judges
for felonies, most of us didn't see any reason for that kind of
big disparity in sentencing.
So, a new Committee, a better researched Committee doesn't
necessarily mean that we're going to have a solution to the
problem. One of the concerns I have about blanket across-the-
board decisions on sentencing after the fact is that most of
the judges I know--I was a State felony judge--but Federal
judges as well have these massive presentence reports. Some of
us spend a tremendous amount of time agonizing over all the
details in that presentence report and trying to come to the
right conclusion. Then to have somebody, some Committee,
somebody come in and say we don't know anything about this
case, but we're going to come in and adjust that sentence.
Well, they may not know what the judge knows from the
presentence report, that actually there was a gun involved. In
order to get someone to testify against a bigger guy, there was
an agreement we won't include the gun charge so you'll get a
lighter sentence.
I mean, there are things that are considered at the trial
court that don't get considered when this body comes in and
says we're going to have a blanket adjustment to sentencing.
There's been a good deal of criticism of President Trump
for granting pardons in the military system. I would encourage
others on this Committee, please join with me in helping reform
the military justice system.
Because when you have the same commanding general that
signs an order saying I want this person prosecuted and even
without saying it, it's clear to every commander, everybody
below the commanding general, that he wants him convicted or he
wouldn't have signed the charge.
Then the general gets to pick the people that will be on
the jury, and the jury doesn't even have to be unanimous. It's
a problem, and we have had a lot of unfairnesses in the
military system.
I know that's not what anybody here is about, but when
we're taking a look at unfairness and justice, that is a grave
unfairness. Actually, President Trump didn't get to everybody
that should have gotten pardoned.
One of the finest hires I've ever made was somebody that
was treated that way in the military justice system. He now
works for me. He didn't get a pardon, but he's a brilliant guy,
and he's going to help us make these changes.
I just point those things out from somebody that has
agonized over sentencing and tried to do the right thing in
sentencing. It's not fair to have somebody come in that doesn't
know the case you did and change the sentence. We have got to
work toward more fairness. Appreciate--
Ms. Jackson Lee. The gentleman's time has expired.
Mr. Gohmert. All right, I appreciate it. Yield back.
Ms. Jackson Lee. The gentleman's time has expired. I now
recognize the gentlelady from Pennsylvania, Ms. Scanlon, for
five minutes.
Ms. Scanlon. Thank you, Chair Jackson Lee, for holding this
hearing today and to all our Witnesses for being here.
Executive Clemency can be an important tool in our justice
system. However, as so many have attested today, the current
process could use some work.
I had the privilege of participating in the Clemency
Project 2014, an effort led jointly by the then White House,
the Department of Justice, and a host of groups across the
ideological spectrum to grant relief to nonviolent offenders
who've been subjected to mandatory minimum sentences, which
we've since moved away from.
In that project, we trained hundreds of private bar lawyers
across the country and joined them in screening thousands of
case files and filing hundreds of clemency petitions on behalf
of individuals who met a rigorous criterion for consideration.
I was really pleased that the team at my law firm obtained
clemency for 29 individuals. I think their stories can help
inform this conversation and dispel some of the rhetoric and
fears about releasing dangerous individuals into the community.
One of them was Michelle Miles, who was jointly represented
by my former law firm and NYU students under the supervision of
Professor Barkow. Another was Cindy Shank, whose story was the
basis for an award-winning 2018 documentary, The Sentence,
which provides an in-depth look on the incredible impact that
clemency can have.
I also know that thousands of clemency applications were
left unaddressed when President Obama left office, with his
successor choosing to prioritize clemency and pardons for his
personal associates and individuals recommended by social media
influencers using no discernable objective criteria, other than
political expediency.
I understand that our current process can be burdensome,
inefficient, and both underutilized and subject to abuse. So,
it sounds like there are ways we can improve the clemency
process and ensure that the President can effectively implement
this important tool.
Professor Barkow, yesterday I joined Congresswoman Pressley
and two of our Republican colleagues, Representatives Joyce and
Armstrong, in a letter to the Pardon Attorney requesting
disaggregated demographic data on the clemency application
backlog so that we can better understand its impact on
communities.
We know there currently are over 17,000 pending clemency
petitions stuck in that backlog. Can you give us a sense of who
the applicants caught in the backlog are? Do many of them meet
the criteria for clemency established by the last couple
Administrations?
Ms. Barkow. I'll answer that to the best that I can, but
it's not a very transparent process, which is one of the
problems. We don't really know because the Pardon Attorney
doesn't give very much information about what the petitions
look like.
What I can tell you is there are thousands of people who
would not be serving the sentences they're serving today
because the law itself has changed, and Congress did not make
the changes retroactive, for example in the First Step Act.
Other than making crack cocaine changes retroactive, all the
other changes to mandatory minimums were just forward-looking
only.
There's a lot of people who are serving sentences that
wouldn't get the sentences they have today. Similarly, they
wouldn't have gotten the sentences they have today because they
were sentenced under mandatory guidelines, and they didn't get
covered by the Obama initiative.
We know there are thousands. I can't give you a precise
amount. I can tell you the Sentencing Commission did a report
after the Obama initiative and found who there were thousands
of people who met his criteria who just kind of escaped review
under that process.
The other thing we know is there are thousands, we don't --
again, I don't know the precise number, I've tried to get it
from BOP, this Committee could get it, who have been released
under the CARES Act.
So, they're already released under home confinement.
Attorney General Bill Barr released them. They will go back to
prison if the pandemic is declared over--if the emergency is
over--unless they get clemency relief.
They were a big chunk of the people who got the grants from
President Biden in those 75. So, that's another large group of
people who are in there.
Then we have a lot of people who are serving sentences
under mandatory minimums. To go back to Representative
Gohmert's point, those judges had no authority to give that
sentence, their hands were tied.
Many of those judges would very much like to see those
people get clemency because they actually weren't the product
of a judge looking at individual circumstances and facts. They
were mandatory minimums that the prosecutor brought, and they
were triggered by the conviction or the plea. That's it, the
judge couldn't do anything about it.
So, those are some of the people that are in that pool.
They have families, they have loved ones, they've served their
time. They have reformed. Many of them like Mr. Underwood have,
unblemished records that are very hard to have while someone is
incarcerated. They're just looking for a second chance and show
that they're no threat to public safety.
Ms. Scanlon. Well, I share your concerns that the White
House and DOJ lack the resources to tackle the backlog and be
more efficient moving forward, and that there's a potential for
conflict of interest within the DOJ. Can you just speak very
briefly about how the pardon advisory board could assist with
that?
Ms. Jackson Lee. The gentlelady's time has expired.
Ms. Scanlon. Okay, Madam Chair, I just would request
unanimous consent to enter into the record an article from
National of Second Chances detailing the experience of Michelle
Miles, who received clemency from President Obama in 2016.
Ms. Jackson Lee. Without objection, so ordered. The
gentlelady witness can provide the answer in writing. Thank you
for your courtesy.
[The information follows:]
MS. SCANLON FOR THE RECORD
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Ms. Scanlon. Thank you.
Ms. Jackson Lee. Thank you. I recognize now Mr. Tiffany for
five minutes.
Mr. Tiffany. Thank you, Madam Chair, and it's good to have
all you here. Mr. Underwood, it's good to see you here before
this body once again.
You cited President Ford, I believe, Ms. Barkow, and that
he set up this panel. I mean, isn't it the case that the
President can do this if he wants to?
Ms. Barkow. Yes, I have urged him to do this, and he has
not yet.
Mr. Tiffany. Isn't it the case that he could just
reprioritize, you hear about this backlog, can't he
reprioritize this within his Department of Justice and say we
want to see more of these reviewed and the decisions expedited?
Ms. Barkow. He can. That's a little bit trickier, to be
honest. President Obama effectively tried to do that. He told
the Department of Justice what he was interested in doing.
It's very hard to get through that machinery to crank out
what the President wants, because you can see it's a bit of a
bureaucratic mess. It's hard to oversee that in a way that gets
exactly what you want out of it. Yes, the President can do it.
I would say the best thing he could do is to give the
Department of Justice very clear categories, as Ms. Taifa
pointed out, and that's the most effective way to get this
organizational chart.
Mr. Tiffany. I'm so glad that you bring up the bureaucracy,
because we're going to comment on that later. It's one of the
great concerns I have, having served in State government, are
we setting up a parallel bureaucracy that ends up just being a
problem.
I hope I say your name correctly, Ms. Taifa. You were
talking about a categorical clemency or commutation or
whatever. So, do you believe we should have a broad class of
people that should simply be given clemency or?
Ms. Taifa. Well, actually, what I'm talking about is a
rebuttable presumption of release for specific, targeted
categories of persons. I gave examples of a number of different
categories.
It's not just a broad, get-out-of-jail-free type of
situation. It's a rebuttable presumption, meaning there will be
a presumption, say, if someone has served a certain amount of
time, has complied with all the things they're supposed to
comply with in prison, that they should be able to be granted
at least a presumption of that.
That could be rebutted by the prosecutor or whatever, but
there should be some type of process that can be expedited, and
that's one way of going about that.
Mr. Tiffany. Thank you for your answer in regard to that. I
think we also have to really be mindful of victims in regard to
this.
I think about in the State of Wisconsin, our Governor
Evers, who named his parole commission, just recently was going
to parole someone who had a heinous record of a brutal murder.
The family was outraged at the parole commission that was named
by Governor Evers, that they were going to let this person
loose. So, I think we have to be very mindful of the victims
also.
Mr. Hurst, how often in, let's say the last decade, does
someone go to prison for a simple marijuana possession charge?
Mr. Hurst. Oh, I have no idea. I don't have that in front
of me.
Mr. Tiffany. Mr. Murray, can you answer that question, how
often does somebody go to prison for a simple marijuana charge?
Simple possession.
Mr. Murray. Sure, almost never at this point in time. Only
large, large quantities. Obviously, with the trend across the
country as it relates to cannabis, there's less and less
emphasis.
Resources aren't available, we're inundated with meth and
other more serious drugs. The attitude is that we don't have
the time or the resource to deal with marijuana.
Mr. Tiffany. So, what you're saying--
Mr. Murray. Very rare, very rare.
Mr. Tiffany. What you're saying, Mr. Murray, is it's pretty
rare to see that, it's rare to see that happen.
Mr. Hurst. Mr. Tiffany, I can tell you in 15 years as a
Federal prosecutor, zero have been prosecuted in the Southern
District of Mississippi for simply marijuana possession.
Mr. Tiffany. Yeah, okay. Just a follow up, Mr. Hurst. What
are the unintended consequences of--you've got 20 seconds to
answer this--what are the unintended consequences of making
this change?
Mr. Hurst. Well, I think the unintended consequences is
what Professor Barkow said, which is the President can just
ignore it. The problem is we're just creating more bureaucracy.
If you look at the FIX Clemency Act, we're putting more
people on the Federal dole, we're funding more retirements,
we're funding more salaries. We're basically sending the
taxpayers' dollars out for no apparent reason.
Mr. Tiffany. So, thank you for that. I'm just going to
close with this: I am so glad you brought this up in regards to
the bureaucracy, because we see it everywhere in the Federal
government. It happens everywhere.
When you hear us talking about natural resources, you hear
us talking about any issues where there are huge impediments in
the way, you see charts like that you could double the number
of people that are in the way. That happens all over our
Federal government.
We need to fix it, and I'm so glad you bring it up, and I'm
glad you bring up the negative decision bias that goes on in
our Federal government.
Ms. Jackson Lee. The gentleman's time has expired.
Mr. Tiffany. I yield back.
Ms. Jackson Lee. The gentleman's time has expired. I'm now
pleased to yield to the gentlelady from Missouri, Congresswoman
Bush, our Vice Chair, for five minutes.
Ms. Bush. St. Louis and I thank you, Chair Lee, for
convening today's crucial hearing. Thank you for your
partnership and collaboration on such an urgent issue as
clemency, which has been a top priority for me since I was
sworn into office.
Three weeks ago, after months of urging from myself and our
fellow colleagues, President Biden granted clemency to 78
people, including 75 commutations and three pardons. I was
absolutely proud to see two of those residents--two of those
people were residents of St. Louis.
In exercising this extraordinary executive authority, the
President cited redemption and rehabilitation as core values of
our nation. I couldn't agree more, and I commend him for taking
this necessary step.
During the previous Administration, the President largely
used his clemency power for cronies, for family Members,
political allies, and friends. Rather than a tool of redemption
and decarceration, he wielded this authority for nepotism and
corruption. Clemency became an extension of the privilege
afforded to the rich and the powerful.
In the context of our punitive carceral system, clemency
provides President Biden with the authority to put humanity
over greed, justice over violence, and righteousness over
corruption.
Ms. James, in your testimony that 65,600 mothers are in
Federal prison unable to raise their children, leaving 1.7
million children behind, and that every tenth mother will never
see their children again, even after they are released from
prison, how would mass commutations and clemencies impact Black
and Brown communities, particularly women?
Ms. James. Thank you and thank you for your support for our
efforts around clemency for women in the Federal system,
Congresswoman.
Clemency allows the President to strengthen communities
with a stroke of a pen. We have thousands of women currently
incarcerated who have lots of years inside already where their
children were infants and now may be 10-12 years old. That is
typical throughout the Federal system.
We have women like Danielle Metz, who's here with me,
Congresswoman, who you have met and personally had
conversations with. Dani's story is unfortunately not an
anomaly. It is so common in the Federal system. Dani is here
with us today, thank goodness, after 23 years in a Federal
prison where her children grew up without her.
The Adoptions Safe Families Act, which we have to
desperately work on, is something that destroys families.
Because it requires that the State remove custody of parents,
and it did not take into consideration the fact that many of
these people were going to be incarcerated women.
Eighty-five percent of currently incarcerated women are
mothers, and they were the primary caretakers of their children
prior to their incarceration. We must do something to recognize
the further harm and trauma that happens when you separate
mothers from children, and that you remove these women from our
communities.
Clemency is gender justice. It is an opportunity for us to
correct some of the things that all the people on this panel,
including conspiracy and other things that have led to
significant convictions in unreasonable amounts of time that
are affecting the women in the Federal system.
Women just like Danielle Metz, just like Virginia Douglas,
just like Kemba Smith. Women just like Amy Povah.
Women just like Michelle West, going on her 29th year of
incarceration, never an infraction during incarceration, whose
daughter Miquelle has come before this Committee and the White
House countless times to beg for a second chance for her
mother.
So, this does mean something to us. Clemency would provide
a huge tool to help us to move these women and help to reunite
and heal families.
Ms. Bush. Thank you.
Ms. James. Thank you.
Ms. Bush. Ms. Taifa, you talked powerfully about Marcus
Garvey's conviction being unjust but outright wrong. Why is it
so important to exonerate Garvey and other leaders of racial
justice who have been victims of prosecution?
Ms. Taifa. Thank you, Congresswoman. It is so very
important because there have been so many instances of
injustice in this country, not just what's happening now, but
what has happened historically. Marcus Garvey served to unite
Black people, not only in this country, but across the world as
well.
He was targeted by this government, he was targeted by the
predecessor to the Federal Bureau of Investigation, the Bureau
of Investigation under a young J. Edgar Hoover.
The trial was a mix of issues dealing with race and dealing
with politics. Even the President at that time, Calvin
Coolidge, agreed, and a result commuted that sentence.
That commutation did not remove the stigma of his name. His
living son, Dr. Julius Garvey, has been seeking to restore the
honor of his father. His image, Marcus Garvey's image, in on
the currency of the nation of Jamaica. All over the world,
people have been honoring him. Dr. Martin Luther King, Nelson
Mandela, others, many leaders around the world.
Ms. Jackson Lee. The gentlelady's time--
Ms. Taifa. Have learned from his teaching. Thank you.
Ms. Bush. Thank you, I yield back.
Ms. Jackson Lee. Thank you. Gentlelady's time has expired,
thank you very much. Let me acknowledge if there are any other
Members that are in the room.
Mr. Biggs. Madam Chair, Mr. Massie is in the room and would
like to speak.
Ms. Jackson Lee. I'm delighted to yield five minutes to Mr.
Massie.
Mr. Massie. Thank you, Madam Chair.
There's no doubt in mind that we have thousands of people
in this country who are incarcerated unfairly or over-
incarcerated. They've served their time, they've been punished
enough, and that they should be released to leave--lead
productive lives.
With that said, clemency is a tool of the Executive Branch,
not of Congress. I think we need to take this opportunity to
think about what we could do in Congress to fix these problems,
or to prevent these problems.
I don't think mass clemency is the answer any more than
mandatory minimums are the answer to crime, because it's a one-
size-fits-all. I do think there should be more clemency and
more considerations given on an individual basis.
Ms. James, you mentioned conspiracy and how so many people
are charged with conspiracy. Just to summarize for those people
who are watching this, this is a way to prosecute somebody who
has not committed a crime. What we have to do is have the
resolve in Congress not to pass more conspiracy laws.
We're doing it every year. It's not easy to vote against
some of these bills that have the conspiracy stuff stuck in
them. The anti-lynching bill had a conspiracy charge or clause
in there. So, that you could convict somebody who had never
been involved in lynching somebody merely for talking about it.
So, it takes resolve on the part of my colleagues to vote
against these things where we create new conspiracies.
Also, mandatory minimums. These are one of the most
dangerous things that we've created here in Congress. They're a
creation of Congress, not the Executive Branch. We don't let
the judges have the discretion that they should have to
determine what the actual punishment is to fix the actual
crime.
When you've got a bill, and it's a bill to prevent sex
trafficking, and there's a mandatory minimum in there, it's
hard politically, it's hard for my colleagues to vote against a
sex trafficking bill that would cut back on sex trafficking,
even if it's got a mandatory minimum in there.
They're not considering the fact that mandatory minimum
could be used to prosecute a receptionist at an internet
hosting company merely because that internet site was used for
sex trafficking.
The single mom who's the receptionist there, maybe she
knows something's up and everything at this company's not on
the up and up, but she's got to feed her kids and she's working
there as a receptionist. Why does she deserve ten years in
prison when the person who's actually committing the crime may
get exactly the same sentence?
This just takes a lot of resolve. We got to start reading
the bills, read the bills, look for these things in there, and
offer amendments that take out the conspiracy charges and to
take out the mandatory minimums that are in there that tie the
judges' hands and then create this problem on the back end
where you need to use clemency.
I'd just like to use my remaining time to talk about one
case, the case of Ross Ulbricht. He was a young, peaceful,
first-time offender serving a double life prison plus 40 years.
The guy has been condemned to rot in prison for setting up a
website called Silk Road. There were people selling drugs on
there, and he probably knew that was happening.
The people who were selling drugs on there who got
convicted are already out of prison, and the guy who set up the
website when he was 26 years old is now ten years later, this
fall, it will be the tenth anniversary of his time in prison.
He was an Eagle Scout. He doesn't claim that he was
innocent, he knows now that it was a crime. He's asking for
clemency; he's asking for his sentence to be commuted. He's got
a college degree; he could be a productive member of society.
So, I would like hopefully the Executive Branch to look at this
case.
Madam Chair, I would like to submit for the record a
summary of Ross Ulbricht's case from freeross.org, and remind
people that Ross was never prosecuted for causing harm or
bodily injury, and no victim was named at his trial. I ask
unanimous consent to submit these two pages from that site.
Ms. Jackson Lee. Without objection, so ordered.
[The information follow:]
MR. MASSIE FOR THE RECORD
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Mr. Massie. Thank you, and I yield back the balance of my
time.
Ms. Jackson Lee. The gentleman yields back. Mr. Biggs, do
you have--I do have some concluding remarks. Mr. Biggs, do you
have concluding remarks? I yield to you at this time.
Mr. Biggs. Madam Chair, thank you. I'm going to forego my
concluding remarks because of the vote. Thank you, Madam Chair.
Thanks to the Witnesses.
Ms. Jackson Lee. Thank you as well to the Witnesses. Let me
again, I do have some concluding remarks.
Let me thank Congresswoman Pressley; Mark Osler, Professor
Osler; Professor Barkow; Professor at one time but a CEO and
founder of the Taifa Group, Nkechi Taifa; Andrea James; Michael
Hurst; and the Honorable Morris Murray.
In concluding, let me say that the genesis of this hearing
was absolute necessity, and the thousands that languish in
prison in our Federal system that really warrant this response
of a clemency or a pardon. I think what the Witnesses have
generated today is that there is a bipartisan support for a
response and for an answer.
As I conclude, I just want to briefly submit into the
record the story of Anthony Todd Robinson, who was an Army
officer who was arrested on mistaken identify for sexual
assault and spent 27 years in the State system in Texas.
He received from then-Governor Bush clemency, and he is
also now a board-certified law graduate and attorney helping
those who are particularly in need. That is Mr. Robinson.
Ms. Jackson Lee. In addition, Michelle Miles, Pedro Torres,
Waylon Wilson, are all individuals released under this system.
They have not contributed to crime; they've contributed to
society's best. They have made an economic contribution to our
engine of our economy.
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MS. JACKSON LEE FOR THE RECORD
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We must recognize that there are different times when
people were incarcerated and arrested, convicted, and from the
time that they come and seek clemency.
Very quickly, Mr. Hernandez, you tell a powerful story. Can
you just quickly say why you are seeking a pardon?
Mr. Hernandez. The reason I'm seeking a pardon is to make
me whole again, to give me a chance to be back, as you could
say, my civil rights. Whether that's to hold public office or
to rent an apartment or to get a certification or a license--
Ms. Jackson Lee. You are a different person today than you
were before, is that correct?
Mr. Hernandez. Excuse me, ma'am, what was that?
Ms. Jackson Lee. You're a different person today than you
were at the time of your criminal activity.
Mr. Hernandez. Oh, yes, even when I wrote President Obama,
I told him I wasn't in a position to tell him I deserved life
or freedom. What I could tell him was that I was a changed
person. That I wasn't that 18-year-old kid that sold drugs over
15 years ago.
Ms. Jackson Lee. All right, thank you. Let me quickly go to
Mr. Underwood. Can you explain how clemency can be used to
right the wrongs of a tough-on-crime era that was an era of
really lack of options, no one thought creatively.
Yes, drugs were horrible, and I defend those people who at
that time felt that was the way to go. There was no options.
Then it lasted forever.
Mr. Underwood. Yes, ma'am. Well, one thing they could do
since is look at resentencing. Could look at a person and see
that they're not the person they were. They can determine and
look at resentencing. It's not a get-out-of-jail-free card. A
look at resentencing is for a District Court Judge after a
thorough vetting of the individual and look at them and see
that they're not who they were when they came in many years
ago, that they're a reformed person and that they can
contribute to society as an American citizen.
Ms. Jackson Lee. Thank you. Ms. Taifa, on the issue of
Marcus Garvey, let me just add to the point very quickly, the
time is running. That many people fighting social ills were
caught up in the criminal justice system. Marcus Garvey, that
happened to him, and he deserves the respect of a response of
the pardon.
Is that your view? Ms. Taifa?
Ms. Taifa. I said absolutely, yes, he definitely deserves a
pardon. We need closure to that era in history.
Ms. Jackson Lee. Thank you so very much. Again, I want to
thank all the Witnesses. The guiding post is that we must do
something to reform the clemency and pardon process. This
oversight hearing was not a first step. I believe it should be
a comprehensive step.
We do need to meet with the Pardon Attorney, we'll insist
that we do so. As well, we need to begin to reform this process
immediately, for there are too many mothers and fathers and
people who are seeking to do better in this nation.
Again, my appreciation to all the Members who participated.
This concludes today's hearing. Thank you to our distinguished
Witnesses for attending.
Without objection, all Members will have five legislative
days to submit additional written for the witnesses or
additional materials for the record. Now, this hearing is
adjourned.
Thank you to the Witnesses.
[Whereupon, at 11:14 a.m., the Subcommittee was adjourned.]
QUESTIONS AND ANSWERS FOR THE RECORD
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